ANANTA CHARAN MALLICK Vs. SAYED GOUSH ALI

JUDGEMENT

(1.) Can a Judicial Magistrate, before issue of process against the accused, for the purpose of deciding whether or not there is sufficient ground for proceeding, direct an Executive Magistrate to make enquiry under Section 202(1) of the Code of Criminal Procedure, 1973 ? This is the short question that arises for our consideration in this writ petition.

(2.) The facts : The petitioner was the Officer-in-charge of Titilagarh police station at the material time. The opposite party No. 1 filed complaint (registered as I.C.C. No. 22 of 1987) against the petitioner under Sections 352/504/506 of the I.P.C. in the court of sub-divisional Judicial Magistrate, Titilargh. The gravamen of the allegation in the complaint is that on 25-4-1987 at about 8.15 p.m. the complainant (Opposite part No. 1) who is an advocate along with another advocate one Sri. R. K. Padhi and one G. V. Ramanaiah went to the police station and asked the petitioner the reasons for detention of the truck No. AAP 2886 belonging to the said Ramanaiah. The petitioner instead of disclosing the grounds for detention of the truck, rebuked them in filthy languages. The learned sub-divisional Judicial Magistrate after taking the initial statement of opposite party No. 1 and after examining two witnesses directed the learned Executive Magistrate 1st Class, Titilagarh to hold an enquiry under Section 202(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). Pursuant to the said direction the learned Executive Magistrate examined witnesses produced by the opposite party No. 1 and submitted the report. On 12-5-1988 the learned sub-divisional Judicial Magistrate after perusing the report and statements recorded under Section 202(1) of the Code took cognizance under Section 352/504 of I.P.C. and directed issue of summons against the petitioner. The said order dated 12-5-1988 was challenged by the petitioner before the learned additional Sessions Judge, Titilagarh on the grounds, inter alia, that the learned sub-divisional Judicial Magistrate being not competent to get the matter enquired into under Section 202(1) of the Code by an Executive Magistrate, the order of taking cognizance based on the report made by the learned Magistrate is vitiated in Law. The learned Additional Sessions Judge by the impugned judgment of Annexure-2 rejected the contention of the petitioner by holding that the expression "by such other person" occurring in Section 202(1) of the Code includes an Executive Magistrate and the enquiry conducted by him pursuant to the direction of the learned sub-divisional Judicial Magistrate is not illegal. The petitioner being felt aggrieved by the said judgment has approached this Court for quashing the entire proceeding of the complaint case.

(3.) Shri. P. K. Mishra, learned counsel for the petitioner relying on the decisions of this Court in Omprakash Sahu v. Manmohan Mohanty, (1984) 57 CLT 355 : 1984 Cri LJ 901, K. M. Lal v. Ashok Kumar Bisi, 1985 (2). O.L.R. 44, Sarat Kumar Patnaik v. New Harayana Transport Company, 1986 (2) O.L.R 276, A. B. Barman v. State of Orissa, 1989 (2) O.C.R. 337 and Pitambar Mishra v. Chandra Sekhar Panda, 1990 (2) OLR 3 : 1990 Cri LJ 1892 contended that the learned sub-divisional Judicial Magistrate committed illegality in directing the learned Executive Magistrate to hold enquiry under Section 202(1) of the Code and the cognizance having been taken on the basis of such report, the order is vitiated. Shri S. P. Mishra, learned counsel for the opposite party No. 1 on the other hand relying on the decisions of the Patna High Court in Ramprabesh Rai v. Bishwa Mandal, 1981 Cri LJ 139 and Ramesh Chandra v. State of Bihar, 1989 Cri LJ 476 submitted that no illegality was committed in directing the Executive Magistrate to hold enquiry under Section 202(1) of the Code and the order taking cognizance cannot be held to be invalid on that ground alone.